NVIDIA SOFTWARE LICENSE AGREEMENT
IMPORTANT NOTICE – PLEASE READ AND AGREE BEFORE USING THE SOFTWARE
This software license agreement (“Agreement”) is a legal agreement between you, whether an individual or entity, (“Customer” and “you”) and Mellanox Technologies, Ltd. (“NVIDIA”) and governs the use of the NVIDIA NMX software and material that NVIDIA delivers to you under this Agreement (“Software”) together with Services. NVIDIA and you are each a “party” and collectively the “parties.”
By registering to use or using the Software, you are confirming that you have read this Agreement and agree to its terms. If you don’t accept all terms and conditions of this Agreement, do not use the Software.
License
Grants. Subject to the terms of this Agreement and payment of applicable subscription fees, NVIDIA grants you a limited, non-exclusive, revocable, non-transferable, non-sublicensable (except as expressly granted in this Agreement) license during the Term to install, use, reproduce and configure (if applicable) the Software, all the foregoing only for use in your internal systems with NVIDIA NVLink (“Purpose”).
License Types. The term of this Section only applies to the license type provided herein which describes features that may be part of the Subscription. Software is licensed under the Subscription per GPU. Any use of such Software must be under a paid Subscription. Customer’s order, license key or the product description will indicate the parameters of Customer’s license.
License Restrictions
Your Subscription to use the Software is restricted as stated in this Section 2 (“License Restrictions”). Upon NVIDIA’s written request, you will confirm in writing and provide reasonably requested information to verify your compliance with the terms of this Agreement. You may not:
Use the Software for anything other than the Purpose;
Sell, rent, sublicense, transfer, distribute or otherwise make available to others (except authorized users as stated in Section 3 (“Authorized Users”)) any portion of the Software, except as expressly granted in Section 1.1 (“License Grants”);
Reverse engineer, decompile, or disassemble the Software components provided in binary form, nor attempt in any other manner to obtain source code of such Software;
Modify or create derivative works of the Software;
Change or remove copyright or other proprietary notices in the Software;
Bypass, disable, or circumvent any technical limitation, encryption, security, digital rights management or authentication mechanism in the Software;
Use the Software in any manner that would cause them to become subject to an open source software license, subject to the terms in Section 7 (“Components Under Other Licenses”);
Use the Software for the purpose of developing competing products or technologies or assist a third party in such activities;
Disclose results of benchmarking or other competitive analysis or regression or performance data relating to the Software;
Use the Software in violation of any applicable law or regulation in relevant jurisdictions;
Reverse engineer, decompile or disassemble any portion of the output generated using Software elements for the purpose of translating such output artifacts to target a non-NVIDIA platform; or
Use the Software in or with any system or application where the use or failure of such system or application developed or deployed with Software could result in injury, death or catastrophic damage (“Mission Critical Applications”). NVIDIA will not be liable to you or any third party, in whole or in part, for any claims or damages arising from uses in Mission Critical Applications.
Authorized Users
You may allow employees and contractors of your entity or of your subsidiary(ies), and for educational institutions also enrolled students, to internally access and use the Software as authorized by this Agreement from your secure network to perform the work authorized by this Agreement on your behalf. You are responsible for the compliance with the terms of this Agreement by your authorized users. Any act or omission that if committed by you would constitute a breach of this Agreement will be deemed to constitute a breach of this Agreement if committed by your authorized users.
Pre-Release
Software versions identified as alpha, beta, preview, early access or otherwise as pre-release (“Pre-Release”) may not be fully functional, may contain errors or design flaws, and may have reduced or different security, privacy, availability and reliability standards relative to NVIDIA commercial offerings. You use Pre-Release Software at your own risk. NVIDIA did not design or test the Software for use in production or business critical systems. NVIDIA may choose not to make available a commercial version of Pre-Release Software. NVIDIA may also choose to abandon development and terminate the availability of Pre-Release Software at any time without liability. Pre-release versions are provided “AS-IS,” “WITH ALL FAULTS,” and “AS-AVAILABLE,” and are excluded from Enterprise Support.
Services
General Service Terms. Unless otherwise indicated by NVIDIA in this Agreement or an Order Form, Software Subscriptions include Enterprise Support, Maintenance and Updates. Unless NVIDIA accepts Customer’s request for Enterprise Support, Maintenance and Updates in an Order Form, NVIDIA is under no obligation to provide any Service.
Use of Maintenance and Updates. NVIDIA encourages users to use Maintenance and Updates available to them. Customer’s choice not to deploy Maintenance or Update as they become available may result in issues with operability, compatibility and interoperability and result in the Software in use being non-conforming to later Software documentation.
Maintaining the Authorized Number of Licenses. Customer’s use of Maintenance or Update does not change the number of authorized licenses. Customer agrees to promptly discontinue use of prior versions as necessary to maintain the authorized number of licenses.
Work Out of Scope. Any enhancements or additions to Software beyond Maintenance or Updates are outside of the scope of this Agreement.
Your Privacy: Collection and Use of Information
Privacy Policy. Please review the NVIDIA Privacy Policy, located at https://www.nvidia.com/en-us/about-nvidia/privacy-policy, which explains NVIDIA’s policy for collecting and using data, as well as visit the NVIDIA Privacy Center, located at https://www.nvidia.com/en-us/privacy-center, to manage your consent and privacy preferences.
Collection Purposes. NVIDIA may collect certain personal information, such as your name and email address or those of your authorized users, and other information necessary to authenticate and enable you or your authorized users’ access to the Software. Where appropriate you will disclose to, and obtain any necessary consent from, your authorized users to allow NVIDIA to collect such information.
Third Party Privacy Practices. The Software may contain links to third party websites and services. NVIDIA encourages you to review the privacy statements on those sites and services that you choose to visit to understand how they may collect, use and share your data. NVIDIA is not responsible for the privacy statements or practices of third-party sites or services.
Updates
NVIDIA may at any time and at its option, change, discontinue, or deprecate any part, or all, of the Software, or change or remove features or functionality, or make available patches, workarounds or other updates to the Software. Unless the updates are provided with their separate governing terms, they are deemed part of the Software licensed to you under this Agreement, and your continued use of the Software is deemed acceptance of such changes.
Components Under Other Licenses
The Software may include or be distributed with components provided with separate legal notices or terms that accompany the components, such as open source software licenses and other license terms (“Other Licenses”). The components are subject to the applicable Other Licenses, including any proprietary notices, disclaimers, requirements and extended use rights; except that this Agreement will prevail regarding the use of third-party open source software, unless a third-party open source software license requires its license terms to prevail. Open source software license means any software, data or documentation subject to any license identified as an open source license by the Open Source Initiative (http://opensource.org), Free Software Foundation (http://www.fsf.org) or other similar open source organization or listed by the Software Package Data Exchange (SPDX) Workgroup under the Linux Foundation (http://www.spdx.org).
Payment Terms and Taxes
Ordering. You may be able to purchase a Software Subscription directly from NVIDIA, or via a reseller (in some cases a cloud marketplace reseller), as available. Each Order Form will be effective when entered into by you and NVIDIA. Each order placed by you through an Order Form is a separate transaction of the parties under the Agreement
Fees. When purchasing directly from NVIDIA, the following terms apply: Fees for the Software Subscription are set forth in the associated Order Form and are payable pursuant to the terms of such Order Form. Unless otherwise expressly indicated in an Order Form, fees will be invoiced upon your purchase, are payable upon invoice and are expressed in U.S. Dollars. Each Order Form placed are non-cancelable and fees received are non-refundable. All amounts not paid when due will accrue interest (without the requirement of a notice) at the lower of 1.5% per month or the highest rate permissible by law until the unpaid amounts are paid in full. Fees do not include any taxes, duties or similar charges.
Taxes. If NVIDIA is required to pay sales, use, property, value-added or other taxes based on the payments provided under the Agreement and if NVIDIA is required to collect and remit such taxes, then such taxes will be billed to and paid by you or your reseller, unless NVIDIA receives a valid exemption or resale certificate. If you are not billed the applicable tax under the Order Form, then it is your responsibility to properly remit the tax directly to the applicable tax jurisdiction. Further, you acknowledge that the payments to NVIDIA under the Agreement will be made in full without reduction for withholding taxes, if applicable. This section will not apply to taxes based on NVIDIA’s net income or payroll taxes.
Overdue Payment. If any payment is overdue from you or a reseller, NVIDIA reserves the right to suspend or terminate Services in addition to any other remedies it may have, until the payment delinquency is corrected. Payment obligations survive any expiration or termination of the Agreement.
Price Changes. Any price change will only apply to purchases after the price change.
Ownership
The Software, including all intellectual property rights, is and will remain the sole and exclusive property of NVIDIA or its licensors. Except as expressly granted in this Agreement, (a) NVIDIA reserves all rights, interests and remedies in connection with the Software, and (b) no other license or right is granted to you by implication, estoppel or otherwise.
Confidentiality
You may use NVIDIA confidential information only to exercise your rights and perform your obligations under this Agreement. You will not disclose, nor authorize others to disclose NVIDIA confidential information to any third party, except as expressly authorized in this Agreement and as necessary for the Purpose, without obtaining NVIDIA’s prior written approval. Each recipient of confidential information must be subject to a written agreement that includes confidentiality obligations consistent with these terms and must have a need to know for the Purpose. You will protect the NVIDIA confidential information with at least the same degree of care that you use to protect your own similar confidential and proprietary information, but no less than a reasonable degree of care. Confidential information includes, but is not limited to, the Software, including its features and functionality, and any results of benchmarking or other competitive analysis or regression or performance data relating to the Software.
No Publicity
You may not issue any public statements about this Agreement, disclose the Software, or any information or results related to your use of the Software, without NVIDIA’s prior written approval.
Feedback
You may, but are not obligated to, provide suggestions, requests, fixes, modifications, enhancements or other feedback regarding your use of the Software (“Feedback”). Feedback, even if designated as confidential by you, will not create any confidentiality obligation for NVIDIA or its affiliates. If you provide Feedback, you hereby grant NVIDIA, its affiliates and its designees a nonexclusive, perpetual, irrevocable, sublicensable, worldwide, royalty-free, fully paid-up and transferable license, under your intellectual property rights, to publicly perform, publicly display, reproduce, use, make, have made, sell, offer for sale, distribute (through multiple tiers of distribution), import, create derivative works of and otherwise commercialize and exploit the Feedback at NVIDIA’s discretion.
Term and Termination
Automatic License Termination. For Software Subscription, Customer’s Subscription terminates automatically without notice from NVIDIA at the earlier of the expiration or termination of the applicable Subscription or the Agreement (“Term”).
Early Termination of the Agreement. NVIDIA may at any time with advance written notice terminate the Agreement or an Order Form (i) if use of a Software materially breaches the terms of the Agreement, or violates the rights of others, or violates applicable laws and regulations, or (ii) as needed, in NVIDIA’s reasonable judgment, to comply with laws and regulations. Customer may terminate at any time, the Agreement or an Order Form if NVIDIA does not timely cure a material breach of the Agreement. If the termination basis is breach and the breach is curable, the other party will have thirty (30) days from the date of notification to cure the breach, or five (5) days to cure if the breach is of a payment obligation.
Effect of Termination. Upon any expiration or termination of the Agreement or an Order Form, any fees owed to NVIDIA become immediately due and payable even if longer terms have been agreed earlier. NVIDIA or an NVIDIA reseller will also bill Customer for any outstanding payment obligations related to a Subscription period in the event of early termination for any reason other than for NVIDIA’s uncured material breach. Customer agrees to promptly discontinue use of the affected Software and destroy all copies in Customer’s possession or control (including any licenses in use by Customer’s Authorized Users). Upon written request, Customer will certify in writing that Customer has complied with Customer’s commitments under this section. All provisions of this Agreement will survive termination, except for the licenses granted to you.
Services Termination. Services end at the earlier of the expiration or termination of a Software Subscription and no credit or refund will be provided.
Disclaimer of Warranties
THE SOFTWARE IS PROVIDED BY NVIDIA AS-IS AND WITH ALL FAULTS. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NVIDIA DISCLAIMS ALL WARRANTIES AND REPRESENTATIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, RELATING TO OR ARISING UNDER THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF TITLE, NONINFRINGEMENT, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, USAGE OF TRADE AND COURSE OF DEALING. NVIDIA DOES NOT WARRANT OR ASSUME RESPONSIBILITY FOR THE ACCURACY OR COMPLETENESS OF ANY THIRD-PARTY INFORMATION, TEXT, GRAPHICS, LINKS CONTAINED IN THE SOFTWARE. WITHOUT LIMITING THE FOREGOING, NVIDIA DOES NOT WARRANT THAT THE SOFTWARE WILL MEET YOUR REQUIREMENTS, ANY DEFECTS OR ERRORS WILL BE CORRECTED, ANY CERTAIN CONTENT WILL BE AVAILABLE, OR THAT THE SOFTWARE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. NO INFORMATION OR ADVICE GIVEN BY NVIDIA WILL IN ANY WAY INCREASE THE SCOPE OF ANY WARRANTY EXPRESSLY PROVIDED IN THIS AGREEMENT. YOU ARE SOLELY RESPONSIBLE FOR DETERMINING THE APPROPRIATENESS OF USING THE SOFTWARE AND ASSUME ANY RISKS ASSOCIATED WITH YOUR USE OF THE SOFTWARE.
Limitations of Liability
EXCLUSIONS. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL NVIDIA BE LIABLE FOR ANY (A) INDIRECT, PUNITIVE, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, OR (B) DAMAGES FOR THE (I) COST OF PROCURING SUBSTITUTE GOODS OR (II) LOSS OF PROFITS, REVENUES, USE, DATA OR GOODWILL ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, AND EVEN IF NVIDIA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF A PARTY’S REMEDIES FAIL THEIR ESSENTIAL PURPOSE.
DAMAGES CAP. ADDITIONALLY, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NVIDIA’S TOTAL CUMULATIVE AGGREGATE LIABILITY FOR ANY AND ALL LIABILITIES, OBLIGATIONS OR CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL NOT EXCEED THE NET AMOUNT NVIDIA WAS PAID FOR THE SOFTWARE GIVING RISE TO THE CLAIM DURING THE TWELVE (12) MONTHS PERIOD BEFORE THE EVENT GIVING RISE TO THE LIABILITY (OR UP TO US$100.00 IF CUSTOMER OBTAINED SUCH SOFTWARE AT NO CHARGE).
Indemnity
You will defend, indemnify and hold harmless NVIDIA and its affiliates, and their respective employees, contractors, agents, officers and directors, from and against any and all third-party claims, damages, obligations, losses, liabilities, costs or debt, fines, restitutions and expenses (including but not limited to attorney’s fees and costs incident to establishing the right of indemnification) arising out of (a) products or services that have been developed or deployed with or use the Software, or claims that such products or services violate laws, or infringe, violate, or misappropriate any third party right; or (b) use of the Software outside of the scope of this Agreement or in breach of the terms of this Agreement.
General
Governing Law and Jurisdiction. This Agreement will be governed in all respects by the laws of the United States and the laws of the State of Delaware, without regard to conflict of laws principles or the United Nations Convention on Contracts for the International Sale of Goods. The state and federal courts residing in Santa Clara County, California will have exclusive jurisdiction over any dispute or claim arising out of or related to this Agreement, and the parties irrevocably consent to personal jurisdiction and venue in those courts; except that either party may apply for injunctive remedies or an equivalent type of urgent legal relief in any jurisdiction.
Independent Contractors. The parties are independent contractors, and this Agreement does not create a joint venture, partnership, agency or other form of business association between the parties. Neither party will have the power to bind the other party or incur any obligation on its behalf without the other party’s prior written consent. Nothing in this Agreement prevents either party from participating in similar arrangements with third parties.
No Assignment. NVIDIA may assign, delegate or transfer its rights or obligations under this Agreement by any means or operation of law. You may not, without NVIDIA’s prior written consent, assign, delegate or transfer any of your rights or obligations under this Agreement by any means or operation of law, and any attempt to do so is null and void.
No Waiver. No failure or delay by a party to enforce any term or obligation of this Agreement will operate as a waiver by that party, or prevent the enforcement of such term or obligation later.
Subcontracting. NVIDIA may subcontract obligations under the Agreement but will remain liable to Customer for any subcontracted obligations.
Trade Compliance. You agree to comply with all applicable export, import, trade and economic sanctions laws and regulations, as amended, including without limitation U.S. Export Administration Regulations and Office of Foreign Assets Control regulations. You confirm (a) your understanding that export or reexport of certain NVIDIA products or technologies may require a license or other approval from appropriate authorities and (b) that you will not export or reexport any products or technology, directly or indirectly, without first obtaining any required license or other approval from appropriate authorities, (i) to any countries that are subject to any U.S. or local export restrictions (currently including, but not necessarily limited to, Belarus, Cuba, Iran, North Korea, Russia, Syria, the Region of Crimea, Donetsk People’s Republic Region and Luhansk People’s Republic Region); (ii) to any end-user who you know or have reason to know will utilize them in the design, development or production of nuclear, chemical or biological weapons, missiles, rocket systems, unmanned air vehicles capable of a maximum range of at least 300 kilometers, regardless of payload, or intended for military end-use, or any weapons of mass destruction; (iii) to any end-user who has been prohibited from participating in the U.S. or local export transactions by any governing authority; or (iv) to any known military or military-intelligence end-user or for any known military or military-intelligence end-use in accordance with U.S. trade compliance laws and regulations. Use of the Software under the Agreement must be consistent with NVIDIA’s HumanRightsPolicy.pdf (nvidia.com).
Government Rights. The Software, documentation and technology (“Protected Items”) are “Commercial products” as this term is defined at 48 C.F.R. 2.101, consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in, respectively, 48 C.F.R. 12.212 and 48 C.F.R. 227.7202 & 252.227-7014(a)(1). Before any Protected Items are supplied to the U.S. Government, you will (i) inform the U.S. Government in writing that the Protected Items are and must be treated as commercial computer software and commercial computer software documentation developed at private expense; (ii) inform the U.S. Government that the Protected Items are provided subject to the terms of the Agreement; and (iii) mark the Protected Items as commercial computer software and commercial computer software documentation developed at private expense. In no event will you permit the U.S. Government to acquire rights in Protected Items beyond those specified in 48 C.F.R. 52.227-19(b)(1)-(2) or 252.227-7013(c) except as expressly approved by NVIDIA in writing.
Notices. Please direct your legal notices or other correspondence to legalnotices@nvidia.com with a copy mailed to NVIDIA Corporation, 2788 San Tomas Expressway, Santa Clara, California 95051, United States of America, Attention: Legal Department. If NVIDIA needs to contact you about the Software, you consent to receive the notices by email and agree that such notices will satisfy any legal communication requirements.
Severability. If a court of competent jurisdiction rules that a provision of this Agreement is unenforceable, that provision will be deemed modified to the extent necessary to make it enforceable and the remainder of this Agreement will continue in full force and effect.
Construction. The headings in the Agreement are included solely for convenience and are not intended to affect the meaning or interpretation of the Agreement. As required by the context of the Agreement, the singular of a term includes the plural and vice versa.
Amendment. Any amendment to this Agreement must be in writing and signed by authorized representatives of both parties.
Force Majeure. Except for payment of fees or taxes, neither party will be liable during an instance of Force Majeure.
Audit. During the term of the Agreement and for a period of three (3) years thereafter, Customer will maintain complete and accurate information regarding Customer’s activities under the Agreement. NVIDIA or an independent auditor will have the right to audit Customer to validate and confirm Customer’s information and compliance with the terms of the Agreement. Audits will be conducted no more frequently than annually, unless non-compliance was previously found. If an audit reveals an underpayment, Customer will promptly remit the full amount of such underpayment to NVIDIA including interest that will accrue (without the requirement of a notice) at the lower of 1.5% per month or the highest rate permissible by law. If the underpaid amount exceeds five percent (5%) of the amounts payable to NVIDIA during the audited period or if the audit reveals a material non-conformance with the terms of the Agreement, then Customer will reimburse NVIDIA’s reasonable audit costs. Further, Customer agrees that the party transacting to sell Software Offerings to Customer may share with NVIDIA information regarding Customer’s compliance with the Agreement.
Entire Agreement. Regarding the subject matter of this Agreement, the parties agree that (a) this Agreement constitutes the entire and exclusive agreement between the parties and supersedes all prior and contemporaneous communications and (b) any additional or different terms or conditions, whether contained in purchase orders, order acknowledgments, invoices or otherwise, will not be binding and are null and void.
Order of Precedence. If there is a conflict between the documents that make up the Agreement, the documents will control in the following order (starting with the highest order of precedence): (a) the NVIDIA privacy policy, (b) the remainder of the Agreement (excluding the privacy policy) (c) the Enterprise Support Policy, and (d) the Order Form.
Definitions
“Enterprise Support” has the meaning assigned to it in the Enterprise Support Policy.
“Enterprise Support Policy” means the then-current support terms that apply to a particular Software Offering described at https://www.nvidia.com/en-us/agreements/enterprise-services/nvidia-enterprise-support-policy/.
“Error(s)” has the meaning assigned to it in the Enterprise Support Policy.
“Error Correction(s)” has the meaning assigned to it in the Enterprise Support Policy.
“GPU” means (i) for on-premise deployments, the number of physical GPUs in the computing environment which is accessed by the Software. For per GPU licenses, NVIDIA requires one Software license for each GPU.
“Maintenance” means security patch(es), documentation revisions, Error Correction(s) and Workaround(s) to the Software made generally available by NVIDIA in its sole discretion to its other commercial customers of the Software who have the same Software version under a Service contract with NVIDIA that includes “Maintenance.”
“Order Form” means the order that Customer places with: (i) NVIDIA, or (ii) a reseller/cloud marketplace reseller, in each case including all applicable sales terms and conditions issued by NVIDIA (such as a public listing or private offer) and that are accepted by Customer for the purchase of Subscription.
“Services” means any combination of Enterprise Support, Maintenance and Updates.
“Subscription” means Customer’s fixed duration Software license, inclusive of Services, unless otherwise expressly stated in this Agreement or an Order Form.
“Updates” for Services means those modifications to the Software other than Maintenance made generally available by NVIDIA in its sole discretion to its other commercial customers of the Software who have the same Software version under a Service contract with NVIDIA that includes “Updates” as indicated by a new version number (examples, from version 5.0 to version 5.2 or 6.0).
“Workaround” has the meaning assigned to it in the Enterprise Support Policy.